Supreme Court Pulls a Trick Play and Upholds Section 5 of the Voting Rights Act

By Kevin Fayle on June 22, 2009 11:26 AM

In a surprise move, the Supreme Court passed over a chance to rule on the constitutionality of Section 5 of the Voting Rights Act today, crafting relief based on an unanticipated interpretation of the statute instead.

The case revolved around the Act's provision, laid out in section 5, that requires government bodies in areas that were historically involved in the disenfranchisement of minority voters to get "preclearance" from the Department of Justice before modifying their election procedures. The plaintiff in the case, a small utility district in Texas that didn't exist until 1980 and had never been accused of discrimination, wanted a "bailout" from section 5, or, if exemption wasn't possible, a declaration that the section violated the Constitution.

Supreme Court watchers noted that the wording of the statute didn't
seem to allow for an exemption, and the general consensus was that the
Court would strike down section 5, most likely by a 5-4 vote.

Instead,
Chief Justice Roberts, writing for an 8-justice majority, determined
that there was no need to decide the constitutional issue because the
statute itself could provide the relief the utility district had
requested. Roberts employed the constitutional avoidance doctrine,
which instructs judges to avoid ruling on a constitutional issue when
there is a more narrow solution available.

The narrow solution
Roberts crafted involved a determination that a restrictive definition
of "political subdivision" did not apply to the preclearance portion of
the Act. Because of this, Roberts wrote, the narrow definition should
not foreclose on the availability of a bailout for the district.

The
constitutional avoidance doctrine is a pillar of the judicial system,
but its application here involved a few artful judicial maneuvers on
the part of the Chief Justice. So what happened? Why did Roberts, who
had all but expressed his open disdain for the arguments of section 5's
supporters, suddenly choose a path of judicial restraint?

Rick Hasen of the Election Law Blog has an excellent breakdown
of the possible events and/or considerations leading up to Roberts'
opinion. Among them, Hasen theorizes that Justice Souter may have
lobbied behind the scenes for this outcome. He raised the possibility
of an invocation of the constitutional avoidance doctrine at oral
argument, even though observers at the time thought that a resolution
based on statutory interpretation was unlikely.

Another
possibility floated by Hasen is that Justice Kennedy, the Court's
resident swing vote, came down on in support of section 5's continued
viability. Knowing this was a highly sensitive issue, Roberts may have
wanted to secure his desired outcome while at the same time avoiding a
split in the Court over a controversial case.

As it is, only
Justice Thomas did not join the opinion, arguing that Roberts should
not have employed constitutional avoidance, and should have ruled that
section 5 was unconstitutional.

Thomas may eventually get his
wish. Because the Court didn't make a definitive ruling on the
constitutional issue, it's a safe bet that the Voting Rights Act will
end up before the Court again in the near future.